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Defamation and libel arbitration: Too little, too late?

In a bid to widen access to justice for those with complaints against the UK press, the Independent Press Standards Organisation (IPSO) launched a three-month consultation on 16 June over proposals to introduce arbitration as a quicker and more effective method of redress. According to IPSO, the consultation is seeking comment on a host of issues, including whether arbitration should be mandatory; whether awards should be capped; how legal costs should be recovered; what sort of timescale should the process aim to follow; and whether conciliation should also take place.

In launching the consultation, Sir Alan Moses, chairman of IPSO, said, “Arbitration is not just about reducing costs and delays associated with litigation, it is about widening access to justice for members of the public and is something I feel very strongly about.”

Among the challenges in improving existing practice is speeding up settlement. Resolving media disputes outside of the courts – like other areas of civil practice – is the norm. "At least 95 per cent of media-related disputes end in settlement so more attempts at mediation would make perfect sense,” explains Paul Tweed, a JAMS International panellist and head of media and dispute resolution at Johnsons Solicitors. “Alas, it is often not until the cases have got to court that a settlement is reached, which is why the costs are so high. Arbitration and mediation for media-related disputes should be encouraged because the costs of bringing a libel or privacy case are extremely high. It is virtually impossible for the average person to launch litigation as it is so expensive."

Where ADR processes may also assist those with legitimate grievances is in maintaining confidentiality, which has particular relevance for breach of privacy claims, which now dominate press complaints. (Confidentiality is of less relevance to libel claims where remedies where remedies sought often include high-profile apologies – as well as damages – from the offending publication.)

Tweed points out that cases involving privacy, rather than libel, are around 80 per cent of his firm’s media-related work. Increasingly individuals are claiming that a story has breached their right to privacy or they have the “right to be forgotten”, rather than claiming a story has damaged their reputation. This changes the complexion of a case drastically and increases the claimant’s need for sensitive handling of any dispute. Claimants do not want the alleged breach to reach the public domain in the first place so handling disputes behind closed doors facilitates this.

“ADR would be well-suited to these cases because of the confidential nature of the process,” Tweed observes. “It is not like libel, where an apology, correction and damages can solve the situation; once privacy has been breached there is no coming back from that. Accordingly, I would like to see a procedure put in place by IPSO that would enable the subject of the article to seek arbitration before publication. The arbitrator can then assess whether the story or picture would be an invasion of privacy. Always assuming that the newspaper have given advance notice, which is certainly not always the case, then at least in these circumstances prevention would be much better than cure.”

Others may find this kind of prior vetting and adjudication of stories an undue restriction of press freedom. Whatever the outcome of the consultation, its impact is likely to be limited. Coinciding with the launch of IPSO’s consultation came a report by the Reuters Institute for the Study of Journalism on trends in digital news consumption. The report revealed the scale of challenges ahead for traditional – or so-called legacy – media. Those reaching traditional news outlets are increasingly finding them online via shared content on social media, while numbers accessing newspapers’ sites directly (or indeed in print) is diminishing. The potential therefore for any unfounded story to proliferate is evident and its impact can be all the more damaging. Given that the origins of most libel and privacy disputes are on social media, and that IPSO’s reach is limited to members and only those in the newspaper and magazine industry, very substantial problems remain in the field of reputation management.

Tweed concludes: “It is only the mainstream press that subscribe to IPSO so all of the social media sites, such as Twitter, Facebook and Instagram, would not fall under the remit. Social media is the new battleground and is now the biggest cause of libel or privacy issues, with other factors such as harassment and cyberbullying also prevalent. I would like to see some thought go into holding ISPs accountable for their output, just like the traditional media is."

This post was written by Antony Collins who is a freelance journalist. He can be contacted at ac@acollinsmedia.com